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ELCDismissedNot stated in judgment (notice of motion dated 5th October 2016)· [2017] KEELC 1218 (KLR)

Katana Said Kalama & others v Two Thirds Investments Limited [2017] KEELC 1218 (KLR)

Environment and Land Court
2 November 2017
965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to add six land occupants to an existing adverse possession case, ruling their claims were separate and required their own lawsuit.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 5th October 2016 in an adverse possession suit over plot No. 390/11/MN in Utange Kibokoni, brought under Order 1 rule 10, Order 50 rule 1 and sections 3A and 63(e) of the Civil Procedure Rules and Act. Six applicants sought to be enjoined as interested parties and/or plaintiffs, stating they had occupied the land for over 20 years and would be rendered homeless if not joined. The plaintiffs opposed, arguing the applicants had shown no proprietary interest or right of relief arising from the same transaction. The defendant opposed on the basis that a court-ordered survey in the proceedings (arising from Mombasa ELC No. 3 of 2015) identified the specific sub-divided titles occupied by the existing plaintiffs and did not mention any of the applicants. The court applied the three-pronged test from Meme vs Republic (2004) 1 KLR 637 on joinder: complete settlement of questions, protection of rights, and prevention of proliferated litigation. It held that different sets of facts would have to be proved for each claimant; the survey identified specific portions not attributable to the applicants; the orders would be specific to the plaintiffs' portions; and the suit was not representative of all occupants. Joinder would complicate rather than settle the dispute, and the applicants' interests were better pursued in a separate suit. The application was disallowed with costs in the cause.

Key legal issues

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01

Whether the applicants qualified to be joined under Order 1 rule 10 of the Civil Procedure Rules

Holding

The application was disallowed because the applicants failed to demonstrate a nexus with the existing plaintiffs' cause of action; their interests are separate and distinct, and joinder would complicate rather than settle the dispute.

Reasoning

The court applied the three Meme vs Republic criteria for joinder. It found that a different set of facts would have to be proved for each claimant regarding when they took occupation; the survey report showed specific sub-divided title numbers occupied by the existing plaintiffs and did not mention the applicants; the orders to be made would be specific to those portions; and the existing plaintiffs' suit was not representative of all occupants. The applicants' interests could be pursued in a separate suit.

p. 2

Legal principles established

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  • A claimant in an adverse possession suit must show possession of the land for over 12 years, and a proposed joinder must show that their claim is related to that of the existing plaintiffs or arises from the same acts/transactions
  • Where different sets of facts must be proved for each claimant and the existing suit is not representative, joinder will not achieve complete settlement and the applicants are best left to a separate suit

Court orders

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  1. 1.The applicants' notice of motion dated 5th October 2016 is disallowed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10
  • Civil Procedure RulesOrder 50 rule 1
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)

Cases cited (1)

  • Meme vs Republic
    (2004) 1 KLR 637
Jurisdiction invoked
Order 1 rule 10, Order 50 rule 1 and sections 3A & 63(e) of the Civil Procedure Rules & Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Katana Said Kalama & others v Two Thirds Investments Limited [2017] KEELC 1218 (KLR)", Case Analysis (2017). Not stated in judgment (notice of motion dated 5th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1218/eng@2017-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.